General defences in tort

1. Volenti non fit injuria

“To one who consents, no harm is done.” A person who freely agrees to suffer harm, or to run the risk of it, cannot complain of it. Consent may be express or implied from conduct. A spectator at a cricket match consents to the risk of being hit by the ball; a patient consents to a surgical operation.

• Hall v. Brooklands Auto Racing Club (1933). Two cars collided during a race and one was thrown into the crowd, injuring the plaintiff. The danger was inherent in the sport and no such accident had happened before. Spectators impliedly accept such risks; the defence succeeded.
• Padmavati v. Dugganaika (Karnataka High Court, 1975). The driver of a jeep gave a lift to two strangers. A bolt gave way, the right wheel came off, and the jeep overturned; one passenger died. The owner and driver were not liable. The accident was due to a sudden mechanical defect that care could not have detected, and the passengers had voluntarily got into the vehicle and accepted the ordinary risks of travel in it.

Limits of the defence.

• Consent must be free. Consent obtained by fraud or compulsion is no consent. A workman who continues in a dangerous job for fear of losing it does not consent freely.
• Knowledge is not consent (scienti non fit injuria is not the law). In Smith v. Baker & Sons (1891) a workman drilling rock in a cutting knew that a crane swung stones over his head. A stone fell and injured him. The House of Lords held the employer liable: knowledge of the risk did not mean he had agreed to bear it.
• The harm must be the one consented to. A spectator who accepts the risk of the game does not accept the risk of the organisers’ negligence.
• No consent to an unlawful act, and statutes such as the Consumer Protection Act, 2019 restrict exclusion of liability for negligence.

2. The rescue cases

A person who is hurt while trying to rescue someone from a danger created by the defendant’s negligence is not met by volenti. He acts under a moral or legal duty, in an emergency, and his choice is not free.

• Haynes v. Harwood (1935). The defendant’s servant left a horse-van unattended in a crowded street. Boys threw a stone and the horses bolted. A policeman on duty ran out and stopped them to save a woman and children, and was injured. The defendant was liable; volenti did not apply.
• Wagner v. International Railway Co. (New York, 1921). A passenger was thrown from a train because the door was negligently left open. His cousin went to look for him on a dark bridge, fell and was injured. Cardozo J. said “danger invites rescue”: the wrong that imperils life is a wrong to the rescuer too.
• Contrast Cutler v. United Dairies (1933). There was no emergency and nobody in danger when the plaintiff tried to calm a horse; he was held to have taken the risk.

3. Plaintiff the wrongdoer

The maxim ex turpi causa non oritur actio (no action arises from a base cause) bars a claim that the plaintiff can make out only by relying on his own illegal act. It is narrow. A plaintiff is not an outlaw merely because he was doing something wrong when hurt. In Bird v. Holbrook (1828) a trespasser who entered a garden to retrieve a bird was shot by a hidden spring-gun set without notice; he recovered damages.

4. Inevitable accident

An accident that could not have been avoided by the exercise of ordinary care, caution and skill. It negatives negligence. In Stanley v. Powell (1891) a pellet fired at a pheasant glanced off a tree and hit the plaintiff, a member of the shooting party; the defendant was not liable. Padmavati v. Dugganaika, above, also rested partly on this ground.

5. Act of God

An act of God (vis major) is an extraordinary event due to natural forces, without human intervention, which could not be foreseen or guarded against: heavy rain, storm, earthquake, lightning. In Nichols v. Marsland (1876) the defendant’s artificial lakes overflowed after an unprecedented rainfall and carried away the plaintiff’s bridges. The defendant was not liable even under Rylands v. Fletcher. Inevitable accident may involve human agency; act of God does not. Act of God is no defence to absolute liability (see the note on strict and absolute liability).

6. Private defence

A person may use reasonable force to protect his person or property, or another person, against unlawful force. The force must be proportionate to the threat. A person may protect property by fencing it, even with broken glass or spikes, but may not set hidden traps that injure trespassers without warning (Bird v. Holbrook). In Collins v. Renison (1754) a man who overturned a ladder to remove someone nailing a board to his house, throwing him to the ground, was held to have used more force than the occasion required.

7. Necessity

An act done to prevent a greater harm is excused even if it causes harm to an innocent person. Pulling down a house to stop a fire spreading, or throwing cargo overboard to save a ship, are the standard examples. In Cope v. Sharpe (1912) a man who burnt strips of heather on the plaintiff’s land to stop a fire reaching his master’s land was not liable for trespass. In Leigh v. Gladstone (1909) force-feeding a hunger-striking prisoner to save her life was justified. Necessity differs from private defence because the plaintiff need not be a wrongdoer.

8. Mistake

Mistake, whether of law or of fact, is generally no defence. A person who takes another’s goods believing them to be his own commits conversion (Consolidated Co. v. Curtis, 1892). Honest mistake may be relevant in malicious prosecution, where it shows reasonable cause and absence of malice, and in false imprisonment by a person acting on reasonable suspicion.

9. Statutory authority

An act authorised by statute is not actionable, even if it causes harm, provided the authority is exercised without negligence. The statute that authorises the act takes away the remedy.

• Vaughan v. Taff Vale Railway Co. (1860). Sparks from an engine of a railway company authorised by statute to run locomotives set fire to the plaintiff’s woods. The company had taken all reasonable precautions and was not liable.
• Absolute and conditional authority. Where the statute directs the act to be done (absolute authority), the defendant is not liable for unavoidable harm. Where it only permits it (conditional or permissive authority), it must be done without injuring others. In Metropolitan Asylum District v. Hill (1881) the hospital authority had power to build a smallpox hospital but not a duty to build it at a particular place. Building it in a residential area was a nuisance, and an injunction was granted.
• The authority does not protect negligent exercise: Smith v. London and South Western Railway (1870).

10. Sovereign function as a defence

The State may plead that the tort was committed in the exercise of a sovereign function. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, 1964 INSC 199, AIR 1965 SC 1039, the State was not liable when a policeman absconded with gold seized from an arrested person, because arrest and seizure are sovereign powers. In N. Nagendra Rao & Co. v. State of Andhra Pradesh, 1994 INSC 360, (1994) 6 SCC 205, the Court confined immunity to primary and inalienable functions such as defence and administration of justice. The defence is narrow today and does not apply to compensation for breach of fundamental rights. The full account is in the Constitutional Law II note on state liability in tort and contract.

How this is examined

As an essay: “Explain the general defences in tort” or “Discuss volenti non fit injuria with reference to the rescue cases.” Recent KSLU papers have asked for general defences including sovereign functions and statutory authority, so include both. Give each defence a definition and one case; volenti deserves three or four cases. As short notes: rescue cases, act of God, statutory authority, or necessity. Problems on a spectator hit at a match, or a rescuer injured, are answered from sections 1 and 2.